Tecumseh State Bank v. Maddox

• Decision Date: 04 September 1896
• Citation: 1896 OK 93,46 P. 563,4 Okla. 583
• Parties: THE TECUMSEH STATE BANK v. JAMES MADDOX.
• Court: Oklahoma Supreme Court

1896 OK 93

46 P. 563

4 Okla. 583

THE TECUMSEH STATE BANK v. JAMES MADDOX.

Supreme Court of Oklahoma

Decided: September 4, 1896

STATEMENT OF THE CASE.

This action was originally commenced in the probate court of Pottawatomie county by James Maddox, the defendant in error, to recover a judgment of $ 1,000, the proceeds of certain drafts deposited with the Tecumseh State Bank, plaintiff in error, by one Michael Wogoman, and alleged to have been assigned by him to Maddox, after the deposit was made.

Judgment was rendered upon the verdict of the jury in said probate court in favor of said bank, and Maddox appealed to the district court, where a demurrer to defendant's answer was sustained and plaintiff in error, by leave of said court, flied an amended and supplemental answer, which was demurred to by defendant in error; and said district court sustained said demurrer and rendered judgment on the pleadings in favor of the defendant in error and against the plaintiff in error for $ 1,070 and costs. Plaintiff in error excepted; a motion for a new trial was overruled and excepted to and the cause duly brought to this court for review.

The petition of the defendant in error in said cause states: That on the 29th day of March, 1894, one Michael Wogoman deposited in the bank of the defendant three certain drafts for collection; that the amount of said drafts then collected was to be placed to the credit of said Wogoman on the books of said bank, subject to his direction. Said drafts amounted to the sum of $ 1,000; that at the time of depositing the said drafts, said Wogoman took and received from said defendant bank a certificate of deposit in due and proper form, signed by the president of said bank, as the evidence of this deposit; that afterwards, in due course of business, the defendant bank, collected said drafts and received into its possession the full amount and proceeds of said drafts, amounting to the sum of $ 1,000; that no part of the same was ever drawn out of said bank by the said Wogoman or by any person for him, or by his authority; that afterwards, on the 25th day of September, 1894, said Wogoman, for a valuable consideration to him paid, sold and transferred to the plaintiff, Maddox, the said certificate of deposit, and thereby transferred to said Maddox the said sum of $ 1,000, so on deposit in said defendant's bank; that by reason of said sale and transfer, said Maddox became the owner of said certificate of deposit, and of the $ 1,000 so collected and held by said bank, and was and is entitled to have said sum paid to him by said bank; that on the 27th day of September, 1894, Maddox, within proper banking hours, presented said certificate of deposit to said bank, the back of which was endorsed as follows: "For value received, I hereby sell and assign unto James Maddox, the within certificate of deposit and all my claim to the sum of $ 1,000 by me deposited in the State Bank of Tecumseh on the 29th day of March, 1894, and no part of said sum has been withdrawn by me or on my order, and all of which is due from said bank and unpaid, without recourse on me. (Signed) Michael Wogoman." And said Maddox, at the time of presenting the said certificate to said bank as aforesaid, demanded of said bank payment thereof; that said bank refused to recognize said certificate of deposit and refused to pay or in any manner accept the check of said Maddox, drawn on said bank for said sum, or to accept said certificate of deposit and refused to honor either of the same, or to pay any portion of said sum of money to said Maddox.

On the 4th day of October, 1895, under leave of the district court, and within the time fixed by the court, said bank filed in said district court an amended and supplemental answer to said petition in which sold bank denied each and all the allegations in said petition except such as were in and by said amended answer specifically admitted. Said answer admitted that on the 29th day of March, 1894, Michael Wogoman deposited with defendant three certain drafts for collection; that the same were duly collected by the defendant; that the amount of proceeds thereof was $ 1,000. The answer then alleges that the bank received said drafts and the proceeds thereof and agreed to hold the same and pay the same out pursuant to and in accordance with a contract and agreement made between said Wogoman and one Charles J. Benson, a memorandum of which contract and agreement, made at the time, was in words and figures as follows, to-wit:

"March 29, 1894.

"Received from Michael Wogoman, one thousand dollars, subject to the following conditions: That when Michael Wogoman shall receive either homestead or filing papers on the southwest quarter of section thirty-three, township ten N. R. 5 east, then said sum of money shall be paid to C. J. Benson, of Tecumseh, O.T., said Benson having contested said land and contest having been decided in his favor, and when cancellation of said land shall be made on the books of the land office at Oklahoma City, said Michael Wogoman shall make his application for said land.

"(Signed) W.S. SEARCH, President."

That said money, the proceeds of said drafts, should by the mutual agreement of said Wogoman, said Benson and said bank be held by said bank until said Wogoman should be permitted to make homestead entry of or file upon the said described land. That when said Wogoman should make such entry and file upon the said land, then said sum of $ 1000, held as aforesaid, should be paid the said Benson; that in pursuance of said agreement said Wogoman did immediately make settlement on said tract of land under the homestead law, and at the time of filing said answer had availed himself of the said agreement, had made homestead entry thereof, and filed thereon, under said agreement; that said Benson had, prior to the said March 29, 1894, contested the homestead entry of one Aquilla C. Owens on said land, alleging that said homestead entry was fraudulent and void because said Owens was disqualified to make such entry by reason of having violated the law under which said land had been opened to settlement; that said Benson, prior to said date, had presented his evidence in said contest case in the United States land office at Oklahoma City, had paid the fees, costs and charges thereof, had proved said allegations, and had purchased and was then the owner of valuable improvements then on the said land, consisting of a house, fences, plowed ground and other improvements, all of which was then the personal property of the said Benson. That prior to said date on February 3, 1894, the register and receiver of said land office rendered a decision in said contest case in favor of said Benson, and had recommended to the commissioner of the general land office that the homestead entry of said Owens be cancelled and that the preference right to make homestead entry of said lands be awarded to said Charles J. Benson.

That it was on said 29th day of March, 1894, contracted and agreed between said Wogoman and Benson that the said $ 1,000, deposited as aforesaid, should be paid by said bank to said Benson, for and in consideration of the aforesaid agreement, and the aforesaid improvements on said land, the personal property of said Benson, and in consideration of said Benson waiving his preference right to make homestead entry of said tract of land, and his refraining from exercising the same, and from making homestead entry thereof, at such time and under such circumstances as the said Wogoman might make homestead entry thereof, and of permitting the settlement rights acquired by said Wogoman by virtue of the purchase of the aforesaid improvements on said land to attach thereto under the homestead laws. That notice of the decision of the commissioner of the general land office of the cancellation of the homestead entry of said Owens and that the preference right to make homestead entry of said tract of land had been awarded to Benson, was served on said Benson on about March 25, 1895; the said Benson immediately notified the said Wogoman of that fact; that on the 28th day of March, 1895, Benson went with Wogoman to the United States land office at Oklahoma City, and filed with the said office a waiver, withdrawal and dismissal of his preference right to make homestead entry on said land, acquired as aforesaid; and immediately and before any intervening rights of any other person attached to said land, Wogoman made homestead entry thereof and filed thereon and received filing papers on said land. That the aforesaid waiver of said preference right and the aforesaid improvements sold to Wogoman by said Benson was and is reasonably worth $ 1,000 and was of the value of $ 1,000; that the defendant bank on or about the 5th day of April, 1895, paid the aforesaid $ 1,000 to said Benson in accordance with the terms and conditions of said contract and agreement and that all the parties to the aforesaid contract and agreement have complied with the conditions and terms thereof.

That on the 4th day of October, 1895, Maddox filed in said district court, a demurrer and reply to said amended and supplemental answer. That the reply filed therein specifically denied that said Benson had any improvements on said land, or that improvements were embraced in or were a part of said consideration in said contract, or were mentioned in connection with said agreement; that on the 5th day of October, 1895, the district court sustained said demurrer. The plaintiff in error, at the time, duly excepted. Afterwards, on said day, said plaintiff in error, electing to stand on said pleading, and refusing further to answer therein, the said court, upon the pleadings in said cause, rendered judgment in favor of the defendant in error, and against the plaintiff in error, for the sum of $ 1,070 and costs of the action; that on the same day the plaintiff in error filed its motion in said court in said cause for a new trial which said...